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Virginia seeks quick review of health care reform challenge

By Bill Mears, CNN Supreme Court Producer

STORY HIGHLIGHTS

Move would send case directly to the high court

Such motions are rarely accepted

The justices rejected a smiliar request last fall

Washington (CNN) -- Virginia officials have asked the Supreme Court for an expedited review of the sweeping health care reform law, saying the issue is too important to delay consideration of the legislation's constitutionality.

A 23-page appeal was filed with the high court late Tuesday, said a spokesman for the state's Attorney General Kenneth Cuccinelli. The petition seeks an end-around the normal procedure of having a federal appeals court consider the matter before it would be sent to the Supreme Court. Such requests to the high court rarely succeed.

Federal judges in Virginia have issued conflicting rulings on the whether key provisions of the Patient Protection and Affordable Care Act violates the Constitution. One section known as the "individual mandate" would require most Americans to buy health insurance by 2014.

The high court could decide in coming weeks whether it will take on the case at this early stage. The next step would be for the Obama administration to file a legal response to Virginia. The justices had rejected a similar request last fall from a private group that had filed a separate lawsuit against the health care law.

In its appeal, Virginia said it was in the best interest of its citizens to know as soon as possible what effect the health care law will have on them.

"There is a palpable consensus in this country that the question of PPACA's constitutionality must be and will be decided in this Court," said Cuccinelli. "Under these circumstances, the issues presented here should be considered to be at least as important as those presented in many of the cases where immediate review has been permitted" in the past.

Federal judges in Virginia and Florida in recent weeks have found parts of the law unconstitutional, while colleagues in Virginia and Michigan have upheld the provisions.

Virginia officials had argued that the Constitution's Commerce Clause does not give the government the authority to force Americans to purchase a commercial product -- like health insurance -- that they may not want or need.

They equated such a requirement to a burdensome regulation of "inactivity."

Virginia is one of the few states in the country with a specific law saying residents cannot be forced to buy insurance.

A federal appeals court based in Richmond currently has Virginia's appeal, but that court has not yet received briefs in the case, scheduled arguments, or issued any rulings.

At least one justice may be reluctant to consider the issue so soon.

Justice Ruth Bader Ginsburg told an audience last week at George Washington University, "The court itself is a reactive institution. We don't decide, 'We better get this or that case sooner rather than later.'" According to the school's newspaper, she was also quoted saying the court normally likes to have the full legal record -- including all lower court opinions -- before taking on cases. "We have a range of views before us and can make a better informed decision," she said.

It was unclear whether Ginsburg was aware of Virginia pending request for expedited review before she made those comments.

The court has complete discretion whether to take on such cases before they have been fully run up the judicial food chain. At least four justices would have to agree to allow expedited review. The high court's own standard for granting such jurisdiction is "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."

Recent examples of expedited review being granted include the Pentagon Papers (1971), the public release of secret Vietnam-era government documents; and affirmative action efforts regarding admissions at the University of Michigan (2002).

President Barack Obama signed the Patient Protection and Affordable Care Act in March, after promoting Democratic-led health reform efforts for months after taking office. The law is widely considered to be the signature legislative accomplishment of the president's first two years in office.

Among other things, the measure was designed to help millions of uninsured and underinsured Americans receive adequate and affordable health care through a series of government-imposed mandates and subsidies. The federal government stated in court briefs that 45 million Americans last year were without health insurance, roughly 15 percent of the country's population.

Critics have equated the measure to socialized medicine, fearing that a bloated government bureaucracy will result in higher taxes and diminished health care services. About two dozen challenges have been filed in federal courts nationwide.

On November 8, the Supreme Court rejected the first constitutional challenge to the health care reform effort, resisting a California conservative group's appeal. The justices refused to get involved at a relatively early stage of the legal process.

Legal experts say they expect several of the larger issues in the health care debate to ultimately end up before the Supreme Court. A review from the high court may not happen, however, for at least a year or two.

The highest-profile lawsuit may come from Florida, where a federal judge last week tossed out the entire law. State officials there have objected not only to the individual coverage mandate, but also to a requirement forcing states to expand Medicaid. Florida's litigation is supported by 25 other states.

Health care reform -- a top Democratic priority since the Truman administration -- passed the current Congress in a series of virtual party-line votes. Opponent derisively labeled the measure "Obamacare." Republican leaders -- who captured the House of Representatives in the midterm elections -- have vowed to overturn or severely trim the law.

The current high court appeal is Commonwealth of Virginia v. Sebelius.